*1 v. BUSCAINO RHODES Opinion op J. H. P. J. G-illis, Tolling—Offioer^-JIisoretion. Limitation of . 1. Actions — tolling 90-&ay period Statute is not to be construed of gratuitous party, provided as a extension time in which a of places copy complaint a summons and in the hands of of may an exercise his discretion as to when service officer further (CLS 1961, 600.5856). will be made § Tolling—Process—-Immediate 2. Limitation of Actions — Service —Officer. Statute limitations was not tolled since summons and com- of plaint placed were not in the hands for-immediate of serviee, where the summons and were of plaintiffs’ in-the hands and at that time counsel of sheriff temporarily advised the that one defendants requested the state and service not to made (CLS 1961, either until the absent one returned 600.5856). Postponement 3. Limitation of Actions — of Effect. Any postpone act or that is to a statute declaration effect of clearly limitations is to be scrutinized. Appeals Courts —Court of .4. —Stare Decisis —Precedent. Appeals prior Court is not bound its decision in a case. Appeal Appeal 5. Error —Leave to —-Denial. judicial appeal A denial leave to is an act discretion and does not constitute an on the merits. affirmance References for Points in Headnotes [1, 2, Jur, 34 Am 255, Limitation of Actions 258. 6-8] §§ Jur, Jur 34 Am Limitation of Actions 37-46. [3] [4] [5] [9,10] §§ 2d, Am20 Courts 183-203. §§ 4, 2d, Appeal 309, 5 Am Jur and Error 930. §§ Jur, Pleading Am41 340-343. §§ Ápp [Dec Micii Opinion
Concurring Bronson, Judgment Faith— —Good Actions' —Accelerated Limitation *2 Defenses —Waiver. complaint hands Plaintiffs, the a summons and who of days and at toll limitations the statute of for sheriff papers because one to hold the told the time of might jurisdiction, the have was out of defendants good time at the to show evidence allowed faith defendants they judgment, al- should be but not accelerated moved for later assert a to remain silent and lowed faith defense (CPS 1961, judgment rendered has been accelerated after 600.5856; 1968,116). GCP Opinion Dissenting Levin, J. Tolling—Process—Service—Officer— Limitation of Actions — 7. Good Faith. complaint
Ashing
and
are de-
an
at the time a summons
officer
attempting to serve
to him to
livered
defendants
refrain from
necessarily
not
in-
receives
so does
until he
instructions
do
process
was not delivered
dicate that
faith for
tolling
service,
the statute
thus
immediate
for
days;
plaintiffs’
an
believed that
if
attempt
the same
service on both
at
defendants
effectuate
prove
one
would
because
time
ineffective
defendants
might
unavailable,
otherwise
then he
state or
instructing
justified
at-
be
from
officer
refrain
simultaneously serving
tempt
both
to serve with a view to later
600.5856).
(CPS 1961, §
defendants
Tolling—Process—Good
8. Limitation
Actions —
Faith —Ac-
Judgment
Hearing.
—Testimonial
celerated
to an
who delivered a
summons
Plaintiffs
he re-
with instructions not to serve
until
defendants
opportunity
instructions
to do so should be
ceived
hearing
judgment
at a testimonial
on motion
accelerated
good faith,
process
was in
delivered in
to establish
fact
tolling
limitations,
purpose
thus
statute of
effecting
as
simultaneous service on both
as soon
defendants
it could
achieved.
v. Judgment
Competing Affidavits —Is-
9. Motions —Accelerated
—
sue of Fact.
properly
granted
where
not
com-
Accelerated
could
disputed
requiring
peting
presented a
issue of fact
affidavits
116.3).
hearing (GCB 196S,
a trial
Judgment
Judge
—
—
—
Trier of
Trial
10. Motions
Accelerated
Fact.
judgment may
judge considering a
accelerated
A trial
motion for
anticipate
his
trier
and decide on
own role as
of fact
1963,116).
competing
(GCB
alone
affidavits
Mark S.
Branch,
Andrews,
from
Sub
Appeal
(Docket
at
April
Lansing.
mitted
Division
1969.
Rehearing
No.
Decided December
5,624.)
granted
Leave
January 13,
appeal
denied
Harold J. for plaintiffs. Biringer, Richard F. defendants. for J., Before: H. P. J. Levin and Bron- and Gillis, son, JJ. in H. P. The cause action this J. of Gillis, on of an Novem-
case arose out automobile accident commenced on November 13,1964. ber The was suit of the statute 7, 1967, days expiration before the six the of sum- of and that date a limitations,1 copy hands of the complaint mons and were the placed At for service). plain- that time counsel (for sheriff [1] CLS 1961, § 600.5805 (Stat Ann [1962] Rev § 27A.5805). Apr . [Bee Opinion by J. H. P. J. Gillis,
tiffs advised the sheriff that one the of defendants jurisdiction temporarily was outside the and re- quested service not to he made on either defendant until the absent one returned. provides
RJA 58562 as follows: * * * “The “(3) statutes are tolled when complaint copy filed a is and the sum- complaint placed mons and faith, are in the hands of an officer service, immediate this but longer case statute shall not be tolled than days (Emphasis supplied.) thereafter.” January
Service
made on
within the
90-day period commencing with the date
sum-
complaint
given
mons and
were
sheriff. On
January
22, 1968, defendants’
moved
judgment pursuant
accelerated
116.1
GrCR1963,
(5)
ground
on the
had
of limitation
statute
expired
not been tolled but had
because
summons
complaint
and
had not been
sheriff for
granted
immediate service. The trial court
the mo-
April
in an
tion
March 26,1968.
order dated
12,
On
plaintiffs
moved to set
and
aside
order
they appeal.
from
a denial
that motion
question
copy
is
a
whether
the summons
complaint
and
were
in the hands of the 90-day tolling period
for immediate service. The
gratuitous
§ 3 is not to
be construed as
extension
party, provided
places
time which
of the summons and
in the hands
may
officer,
further exercise his discretion as when
import
service will be made. The
of the statute is
stop
to facilitate notice to a
*4
running
days
of the statute of limitation for 90
to
by
defendant to be
com-
allow
served
the officer. See
§
plaintiff
Thus,
mittee comment to
5856.
a
RJA
[2]
CLS
§
600.5856
(Stat
Ann 1962
Rev
§
27 A.5856).
333
v.
by
P. J.
Opinion
H..
Gillis,
running-
upon
limitations is
claim a statute
whose
penalized
time it takes
will not he
up
days.
90
defendant,
a
to serve
plaintiffs’
instructed the
this case
until further notice be-
to withhold service
by affidavit,
“wanted-both de-
as stated
cause,
pre-
in order
at the
time
fendants served
same
avoiding service.” One
defendant from
vent said
capable
being
alterna-
served and
defendant was
means were available
serve
tive
jurisdiction. A
who was outside the
hands
were not
summons
and the
service
statute
of an officer
immediate
was not tolled.
of limitation
postpone
Any act or declaration that is to
clearly scru
limitation
to be
effect of a statute of
is
Drieborg (1941),
I considered have appeal App (leave (1969), denied 765), which reaches 382 Mich case June bound, contrary not, however, are result. We (1965), City Clerk Hackett v. Ferndale see case, appeal leave to Nor the fact that is 1 Mich denials are acts relevance. Such was denied judicial affirm constitute and do not discretion Berry (1968), People merits. ances *5 App [Dec Opinion by Bronson, J. App unpersuaded by Mich ing, I 469. As am its reason Hoseney. I decline to follow appellees. Affirmed. Costs (concurring). concurring J. While Bronson, agree I here, result reached cannot that the rea soning Hoseney and result of this Court’s decision in Zantop (1969), v. In apply. 17 Mich 141,should not
Hoseney the Court stated: require copy placed “Nor does the statute that the in the of the hands officer have been delivered for by provision service statute the officerhimself. The in the requiring process be delivered to complied ‘an officer for immediate service’ is with process if the is in faith delivered to the officer purpose achieving for the * # * immediate service. purpose providing 90-day tolling period
“The is to allow additional time within which to effect purpose by service. That is better served a con- plaintiff struction of the statute that allows a proceed plaintiff as this did than a construction required which would have the officer in this case to have taken action which would not have effected Zantop might earlier service which and well have impossible Zantop made service at all on within 90-day period tolling days remaining few period. require of the limitational The law does not purposeless self-defeating or action.” good-faith There Court used a test: judicature 90-day tolling pro- “The revised act’s requires good by plaintiff. vision faith action plaintiff in this case is shown delivery duplicate copies process her private process the officer and the server and the diligent private process efforts server.” present In the case we find no such evidence of Judge dissenting: faith. As *6 out of the jurisdiction, yet had as As returned. soon returned, as he both defendants were simultaneously served.”
Here there is no record of such faith diligent good Hoseney. The trial as that found in the judge stated in present case a written opinion granting motion for defendant’s accelerated judgment: physical possession “While of a the com- copy of plaint and summons on to the officer No- was vember the instructions such accompanying delivery negate present intention that same was done in for immediate there- service of.”
Indeed plaintiffs’ attorney admitted in answer his to motion that that the complaint
“[Y]our states summons were in the hands of the on 7, 1967; November the time your attorney at informed the sheriff to hold said for the rea- papers son that upon information and belief your attorney was informed that one of the defendants was out of the jurisdiction of the State of Michigan.” Judge states in his dissent: Levin
“I that in recognize this case the plaintiffs’ answer to the defendants’ motion for summary judgment did not fear assert upon service the defendant who admittedly was at all times within this state might cause the other defendant stay jurisdiction until statute ex- had pired. However, the affidavit support of the peti- * * * did tion for so rehearing allege.” [Dec Dissenting Opinion J. Toy Levin, my opinion plaintiffs might It that, is while have allowed
been to show evidence of faith at judgment, time the motion was made accelerated we should not allow them to remain silent and later Hoseney judg- assert a defense of faith after ment has rendered the motion. Judge
I concur with J. H. Gillis in the result but negating Hoseney Zantop (1969), without 17 Mich App 141. (dissenting). provided Within the time Levin, applicable 3-year
in the statute of limitations,1 plaintiffs commencedthis action on 7, November injuries 1967 to recover for suffered in an automo bile accident which occurred on November 13, 1964. Copies of the summons and were delivered day to the sheriff on the same action com menced, but the defendants were not served until January beyond expiration 2, a date 3-year period 90-day limitational but within the toll *7 ing period provided by 5856(3): § RJA * * * “The statutes of are tolled when “(3) complaint the is filed and a of the sum- complaint mons and in in faith, are the an hands of officer service, immediate but in this longer case the statute shall not be tolled than 90 days (Emphasis supplied.) thereafter.” MCLA (Stat § 27A.5856). § 600.5856 Ann 1962 Rev The defendants filed a motion for accelerated n judgment asserting plaintiffs cannot avail 90-day tolling period themselves the because the complaint summons and were “in * * * placed in the hands of an officer for imme- alleged diate service.” The defendants that at the plaintiffs’ attorney time the delivered the summons MCLA § 600.5805 (Stat Ann 1962 Eev 27A.5805), Dissenting Opinion by Levin, complaint attempt and lie told the not to papers and to make service hold the for further instructions. plaintiffs’ attorney response, conceding the filed- an-
swer that had asked he the officerto hold stating papers the that he and that did so “for the reason upon your attorney and belief was information informed that the defendants was one out the jurisdiction Michigan.”2 of the State judge granted trial the defendants’ motion opinion and filed for accelerated a written in which he stated: in following The reeord the sheriff’s office contains the notations
regarding complaint: service of this and summons papers “Hold “Smith until Smith in ealls to serve them. JCW. gave the OK to serve these. 12-28-67. WJH. they “Terrance Rhodes is in Florida G-.L. 1-2-68 and don’t know when will be back. “Complete 1-2-68. LFG.” attorney’s Plaintiffs’ in support affidavit of their unsuccessful petition rehearing following the circuit court contains the : averments department “That he cheeked the records the sheriff’s for the April 12, first time on Deputy “That he “That Weigt. also consulted with Deputy Weigt was unable to recall all the details what 7, your occurred November when affiant left the summons and that upon defendants; for service the that he recalled your affiant informed him that the defendants were involved proceedings. a divorce your “That Deputy Weigt affiant informed that one the de- vacation; fendants was on and that he would have to wait until your he returned as affiant wanted both defendants served at prevent same time in order to avoiding said defendant from service. your affiant, upon learning “That returned, that the defendant department called the sheriff’s and informed them that absent defendant had returned and service; your to make affiant at call; time subsequently cheeking did make a reeord of said with department person, sheriff’s papers found that had not served, again requested your papers be served as getting ready affiant was informed that same defendant again; subsequently your again leave in- cheeked and was affiant department formed the sheriff’s had left for (the this, verify Florida slip). records at the sheriff’s attached office see *8 cheeking Your affiant then did and found that said some employed defendant had not left and instead was at Knowles Auto Parts, your im- then sheriff make affiant insisted that tlie mediate service.” [Bee App
Dissenting Opinion by Levin, J. physical possession “While of a com- plaint and summons was to the on No- accompanying vember the instructions such delivery negate any present intention that the same good in was done faith immediate service there- of.” my opinion,
In the fact that the asked attempting the officer to refrain from defendants until he received instructions to do so to serve necessarily process does not indicate that the was delivered faith immediate service. plaintiffs’ attorney If the believed attempt to effectuate service both defendants prove at that time would ineffective one of because jurisdiction the defendants was or other- jus- attorney might wise unavailable, the have been instructing tified the officer refrain from to attempt simultaneously to serve awith view to later serving both defendants. Hoseney Zantop (1969), 17 Mich
(leave appeal 765), denied Mich one of the jurisdiction. two defendants was out of the plaintiff feared if the defendant within the jurisdiction was served the defendant outside the jurisdiction would become aware the commence- stay jurisdiction ment of the action and out expiration 90-day tolling period until of avoid service. For that reason officer was asked to making giving withhold service. We held that attempt instruction not to serve not neces- sarily statutory requirement inconsistent with the process be delivered to the officer faith for immediate service: purpose providing 90-day period tolling
“The is to allow additional time within which effect purpose service. That is better served con- plaintiff pro- struction statute that allows *9 Btjscaino v. Rhodes Dissenting Opinion by Levin, J. plaintiff ceéd as this did than a construction which required would have in the officer this case to have taken action which would earlier not have effected Zantop might service on and which well have made impossible any Zantop service at all on within the 90-day tolling period days remaining and the few of period. require the limitational The law does not purposeless self-defeating Hoseney or action.” Zantop, supra, p 146.
' recognize plaintiffs’ I in that this case the answer to the defendants’ motion for accelerated upon did not fear that service the assert admittedly who might all this state was at times within stay cause the the other defendant to jurisdiction pired. until the statute limitations had ex- support peti-
However, the affidavit in of the rehearing (see allege. 2) tion for think the so I footnote did
plaintiffs opportunity be should hearing, light recent in the the at decision’in at the time-of .testimonial Hoseney, published which had not appeal, this establish submission process that the in in in this case was fact delivered purpose effectuating faith for the simulta- as neous service both defendants as soon this in could fact be achieved.3 plaintiffs if cannot estab-
Furthermore, even the upon any legitimate deferring lish reason for service juris- the defendant at all within the who was times may prove they de- diction, still be able of state was in who, claimed, fendant it is was out 3Hoseney can, course, distinguished present from case. be the Hoseney times, im- private process at all both server was officer, mediately delivery process to the before and after service, making inquiry whether attempting constant to effectuate jurisdiction, ease, Zantop who was out of the the defendant yet returned, both defendants had as As soon as he returned. hearing simultaneously Nevertheless, at a testimonial were served. plaintiffs may very well be able to convince the trier of fact this ease they complied with too acted requirements of the eourt rule. [Dec Micii
Dissenting Opinion by Levin, process the state at the time fact without delivered and, therefore, that he could plaintiffs did then have been served—that process faith for imme- in fact deliver upon could in fact him as soon as it diate service competing question, affi- achieved. On this “disputed parties presented issue davits properly on the be decided which could not fact” *10 (OCR required hearing a trial which affidavits and considering 1963,116.3). In for accelerated motion anticipate judge may his own the trial plaintiffs may ;4furthermore, the of fact role as trier disputed jury verdict this entitled to a have question of fact.5 justice will be best remand
The ends served complete hearing which for a testimonial at parties sketchy averments the affidavits of the supplemented. can be
Parts App [4] Cf. See Co., Zamler 170. Inc., MLP, v. Statute of Smith American (1965), Arbitration Limitations, Mich Association 18, pp 574, (1967), 682; American notes Levin v. Opinion by Bronson, can, “Hoseney course, distinguished from case. Hoseney the present private process all times, server was at both before and immediately process after delivery the officer, attempt- ing whether the defendant service, effectuate constant making inquiry Zantop who was case,